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expressly in cases of suicide, and in the case of deodand, and preserving silence as to other cases; and in one instancea forfeiture of property is limited to the cases of treason and murder.
The English law has felt the beneficial influence of the progress of public opinion on this subject. The statute of 7 Anne, ch. 22, abolished, after the death of the
pretender, forfeiture for treason beyond the life of *387 the offender; and *though the statute of 17 Geo.
II. ch. 29, postponed the operation of that provision, it was only until the death of the pretender and his sons. And, by a bill introduced into parliament by Sir Samuel Romilly, in 1814, and afterwards, under modifications, passed into a law, corruption of blood, in cases of felony, except murder, was abolished. The ingenious and spirited defence of the law of forfeiture, which was made by Sir Charles Yorke in the middle of the last century,c and in which he insisted, that it stood on “just, social, and comprehensive principles, and was a necessary safeguard to the state, whether built on maxims of monarchy or freedom," has failed to convince the judgment, or satisfy the humanity of the present age.
Government succeeds, as of course, to the personal and real estate of the intestate, when he has no heirs, or next of kin, to appear and claim it; but this is for the sake of order and good policy ; and the succession in such cases is usually regulated by statute.d
. Constitution of Maryland.
• This was the statute of 54 Geo. III. ch. 145, which declared, that no attainder for felony, murder excepted, should extend to disinherit tho heirs, or affect the right and title to the lands beyond the life of the offender. The statute of 3 and 4 Wm. IV. c. 106, weut further, and declared, that after the death of any person attainted, his descendants may inherit.
• Considerations on the Law of Forfeiture for High Treason. a Dane's Abr. vol. iv. p. 537, 538. Statutes of Connectict
1821, p. 198.
II. By judgment.
On a recovery by law in an action of trespass or trover of the value of a specific chattel, of which the pos. session has been acquired by tort, the title of the goods is altered by the recovery, and is transferred to the defendant; and the damages recovered are the price of the chattel so transferred by operation of law-solutio pretii emptionis loco habetur. The books either do not agree, or do not speak with precision on the point, whether the transfer takes place in contemplation of law, upon the final judgment merely, or whether the amount of the judgment must first be actually paid or recovered by execution. In Brown v. * Wotton,a Fenner, J., *388 said, that in case of trespass, after the judgment given, the property of the goods is changed, so that the former proprietor may not seize them again; and in Adams v. Broughton,b the K. B. declared, that the property in the goods was entirely altered by the judgment obtained in trover, and the damages recovered were the price thereof. On the other hand, the rule is stated in Jenkinsc to be, that if one person recovers damages in trespass against another for taking his chattel, “ by the recovery and execution done thereon,” the property of the chattel is vested in the trespasser ; and in the Touchstone,d it is said, that if one recovers damages of a trespasser
for taking his goods, the law gives him the property of the goods, “because he hath paid for them.” The rule in the civil law was, that when the wrongful possessor of moveable property, who was not in a condition to restore it, had been condemned in damages, and had paid the same to the original proprietor, he became possessed of the title. The Roman and the French law speak of the change of rights as depending upon the pay
• Cro. J. 73.
ment of the estimated value. So, also, in the modern case of Drake v. Mitchell, b Lord Ellenborough observed, that he always understood the principle of transit in rem judicatam to relate only to the particular cause of action in which the judgment was recovered, operating as a change of remedy, from its being of a higher nature than before ; and that a judgment recovered in any form of action, was still but a security for the original cause of action, until it was made productive in satisfaction to the party; and until then it would not operate to change any
other collateral concurrent remedy which the party *389 might *have. This is the more reasonable, if not
the more authoritative conclusion on the questionc
· Dig. 6. 1. 35. 63. Pothier, Traité Droit de Propriété, No. 364. Merlin, Repertoire, vol. 13. p. 34. Verbo. Pret.
b 3 East's Rep. 251.
• It remains a vexed question, by reason of loose or contradictory decisions in the books, whether a recovery by judgment in trespass or trover of the value of a chattel, does, by implication of law, per se, amount to a transfer of title to the defendant, or those who held under him, without payment or satisfaction of the judgment. In Smith v. Gibson, Cas. temp. Hard. 303, Lord Hardwicke said, that if the plaintiff recovers damages for a thing, it is as a sale of a thing to the defendant, which vests the property in him, and it is a bar to another action for the same thing. The plea in that case, to which the remark applied, was, that the damages given wero recovered in full satisfaction of the damages sustained. In Moor v. Watts, 1 Lord Raym. 614, Lord Holt is made to say that in replevin for cattle with adhunc detinet, damages given for the cattle will change the property. In the same case, as reported in 12 Mod. Rep. 428, he says, that in replevin for cattle with an adhunc detinet, and judgment for damages against the defendant, by payment thereof, the property of the distress vests in him. The American cases leave the law in equal uncertainty. In Curtis v. Groat, 6 Johns. Rep. 168, Osterhout v. Roberts, 8 Cowen's Rep. 43, Prentiss, J., in Sanderson v. Caldwell, 2 Aik. Rep. 203, Jones v. M'Neil, 2 Bailey's S. C. Rep. 466, and Walker v. Farnsworth, Sup. Court of Tennessee, September, 1844, the doctrine is, that a recovery in damages of the value of a specific chattel does not, of itself, work a change of title, and transfer it to the defendant, or his vendee, without satisfaction of the value found. This is the better doctrine, property does not pass by the judgment, but only by satisfaction of the judgment; so it is adjudged in Sharp v. Gray, 5 B. Monroe, 4, that a judgment in detinue without satisfaction,
III. By insolvency.
It has been found necessary, in governments which authorize personal arrest and imprisonment for debt to interpose and provide relief for the debtor in cases of inevitable misfortune; and this has been particularly the case in respect to insolvent merchants, who are obliged, by the habits, the pursuits, and the enterprizing nature of trade, to give and receive credit, and encounter extraordinary hazards. Bankrupt and insolvent laws are intended to secure the application of the effects of the debtor to the payment of his debts, and then to relieve him from the weight of them.a
does not change the right of property. On the other, hand it is declared in Morrell v. Johnson, 1 Hen. ffMunf. 449, Floyd v. Brown, 1 Rawle's Rep. 121, Marsh v. Pier, 4 Ibid. 273, Fox v. The Northern Liberties, 3 Watts of Serg. 107, Rogers, J., in Merrick Estate, 5 Watts & Serg. 17, Rogers v. Moore, 1 Rice's S. C. Rep. 60, and Carlisle v. Burley, 3 Greenleaf's Rep. 250, that a recovery of the value of a chattel, by judgment, divests the plaintiff of his title, and transfers it to the defendant, though the judgment be not satisfied, and bars him from asserting his title in any other action. In the Am. Law Mag. for April, 1844, there is an able discussion of the authorities and of the legal principles applicable to the question of the “transfer of personal property by judgment,” and in King v. Hoare, 11 Mees. g. W. 494, it was adjudged, after a full discussion, that a judgment against one of two joint debtors is a bar, against the other. It is otherwise where the debt is joint and several. The right given by the judgment without satisfaction, merges the inferior remedy by action for the same debt, and the same result follows in tort. The same principle of law was declared in Ward v. Johnson, 13 Mass. R. 148, Smith v. Black, 9 Serg. f Rawle. R. 142, and Robertson v. Smith, 18 Johnson, 454. If one defendant in a joint contract and action, can plead a sufficient bar as it respects himself, it will avail the other defendant, whereas in the case of a joint and several contract, an unsatisfied judgment against one of the debtors is no bar to a subsequent action against the other. The case in the Supreme Court of the United States, in Sheeby v. Mandeville, 6 Cranch R. 253, may be considered as having been completely overruled by our American authorities, long before the same decision against it was made in the English Court of Exchequer. See Trafton v. United States, 3 Story's R. 616, confirmation of the case of King v. Hoare.
Insolvency means the condition of a person unable to pay his debts as they fall due, or in the usual course of trade and business. Deeds of compo sitions with creditors frequently avoid the necessity of a resort to dis
(1.) The constitution of the United States gave to congress the power to establish uniform laws on the subject of bankruptcies throughout the United States. Bankruptcy in the English law has, by long and settled usage, received an appropriate meaning, and has been considered to be applicable only to unfortunate traders, or persons who get their livelihood by buying and selling for gain, and who do certain acts which afford evidence of
an intention to avoid payment of their debts.a *390 * The general principle that pervades the Eng
lish bankrupt system, is equality among creditors who have not previously and duly procured some legal lien upon the estate of the bankrupt; and in order to attain and preserve that equality, the bankrupt's estate, as soon as an act of bankruptcy is committed, becomes a common fund for the payment of his debts, and he loses
charges under bankrupt and insolvent laws. By these contracts, the credi
accept a composition for their debts, on a part of the whole, and discharge the debtor. They have been termed private bankruptcies, without the advantages attending a regular commission; but if they are made fairly, and in good faith, and strictly conducted, they are valid in equity and beneficial to all parties. See the case of Ex parte Vere, and note Ibid. 19 Vescy, 93. A creditor who does not agree with other creditors to a composition is not bound; but if he does consept, an agreement in derogation of the composition is fraudulent in respect to the other creditors, and void. The composition binds him to good faith. Greenwood v. Ledbetter, 12 Price's Exch. Rep. 183. Acker v. Phænix, 4 Paige's Rep. 305. Jackman v. Mitchell, 13 Vesey, 581. Ex parto Sadler & Jackson, 15 Ibid. 52. Leicester v. Rose, 4 East's Rep. 372. Browne v. Stackpole, 9 N. H. Rep. 478. Seo a collection of all the modern cases on the subject, Petersdorf's Abr. vol. vi. tit. Comp. with Creditors, and to the notes added to the case of Cumber v. Wane, 1 Str. 425, in Smith's Selection of Leading Cases, in the Law Library, N. S. vol. 27.
2 Blacks. Com. 285. 471. The bankrupt act of 6 Geo. IV. enlarged the description of persons subject to the bankrupt laws, and extended it to persons following the vocation of " victuallers, keepers of inns, taverns, hotels, or coffee-houses.” A bankrupt means a broken up and ruined trader, according to the original signification of the term ; a person whose table or counter of business is broken up, Bancus ruptus, Story, J., in Everett v. Stone, 3 Story's Rep. 453.